shutterstock_45046111_SupremeCourtUnder Title VII, if the EEOC issues a cause finding, it must then try to remedy the alleged unlawful employment practice through “informal methods of conference, conciliation and persuasion.”  42 U. S. C. §2000e–5(b).  If, and only if, it is unable to obtain a conciliation agreement that is “acceptable to the commission,” may the agency then file suit. Until now, courts were divided on whether this statutorily-required duty was subject to judicial review.

On Wednesday, April 29, 2015, the U.S Supreme Court ruled that courts do have authority to review whether the EEOC has fulfilled its conciliation duties and thereby unanimously vacated the Seventh Circuit’s ruling that EEOC’s conciliation efforts were unreviewable.  Mach Mining LLC v. EEOC, Case No. 13-1019, 575 U. S. ____ (2015).   “We hold that a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit . . . recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer that is appropriate in any given case.”  The Court also found that “the scope of that review is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice of the claim and an opportunity to discuss the matter.”  Specifically, the EEOC must notify the employer by describing the employer’s allegedly discriminatory practice and which employees (or class of employees) have allegedly suffered.  Further, the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegation.
Continue Reading Supreme Court OKs Review of EEOC Conciliation: Practical Implications for Employers

In an important “win” for employers that has potentially widespread implications, the Sixth Circuit Court of Appeals, sitting en banc, reinstated summary judgment dismissing claims asserted by the Equal Employment Opportunity Commission (EEOC) that Ford Motor Company failed to accommodate a former employee’s request under the Americans with Disabilities Act (ADA) to telecommute up to four days per week. The Court reaffirmed the “general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’” Notably, the Court observed: “The [ADA] requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job – or job schedule – of their choosing.”

The plaintiff in EEOC v. Ford Motor Company, Jane Harris, worked as a resale steel buyer, a position which “required teamwork, meetings with suppliers and stampers, and on site ‘availability to participate in face-to-face interactions,’ [which] necessitate[d]… regular and predictable attendance.” The Court stressed the position was “highly interactive” and required “good, old-fashioned interpersonal skills.”


Continue Reading Sixth Circuit Rejects Telecommuting Demand from Employee

The Equal Employment Opportunity Commission (EEOC) recently issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, which goes some distance in creating potential liability for discrimination by employers for their carte blanche use of criminal record exclusions.
Continue Reading Arrest and Conviction Records in Employment Decisions: EEOC Issues Enforcement Guidance and Best Practices